Case Law: NEJ v Wood – a form of Order to take account of the rights of the “teller”?

27072011

On Friday 22 July 2011 Mr Justice King handed down a public judgment in the case of NEJ v Wood ([2011] EWHC 1972 (QB)). This is a revised version of a judgment originally given more than 3 months ago – on 13 April 2011 – on the return date of an injunction granted on 9 April 2011 by Mr Justice Blake.

The case is an important example of a new trend in privacy cases – giving effect to Article 10 rights by permitting the story to be told without identifying the other party to the relationship.

The original injunction had been granted to an anonymised claimant – “NEJ” – against an anonymised defendant – “BDZ” – (and “Persons Unknown”) to prevent the publication of a story about a sexual encounter. By the return date it had become clear that the first defendant – Helen Wood – no longer wished to retain her anonymity but wanted to publish an account of her sexual encounter with the claimant in the “Sun” newspaper. Ms Wood was not represented but the “Sun” appeared by Leading Counsel to argue in favour of her right to tell her story (and the “Sun’s” right to publish it).

The Judge held that “the applicant is likely to establish that he has a reasonable expectation that that which he does in his private life by way of sexual encounters albeit with a prostitute, should be kept private” [6]. He went on to note that

“no one has submitted before me that there is any countervailing public interest, even taking on board the full impact of Article 10, in the full publication of the applicant’s identity and the full publication of all the details of the sexual encounter concerned. This is not a case in which it has been submitted that because of any public stance taken by the applicant with regard to his marital status or with regard to issues of morality, that he should be exposed in the public interest as, for example, a hypocrite. I am satisfied on the material before me that there would be no justification for a finding that there was a public interest in such full publication on this or any other basis” [9].

The applicant accepted that Ms Wood had an Article 10 right to share with the public her experiences so long as what was published did not, in any way, identify him.

The issue between the parties was the terms of the “proviso” which was to be added to the operative part of the injunction. In support of its contention that this should be in broad terms the “Sun” relied on material which had been published in the “Daily Mail” since the date of the original injunction.

This argument was rejected by Mr Justice King who expressed the provisional view held that these publications were in breach of the original injunction:

“If it were the case that a publication in breach or apparent breach of an existing court order would of necessity compel a court on the return date of the order, to the conclusion that because the dam has been breached there is nothing the court can do to repair the breach, this would be a sad day for the rule of law. The court should not readily condone such breaches of court orders, if ultimately of course it be established there have been such breaches” [21].

He nevertheless concluded that the respondent and the media should be allowed to publish some information concerning that identity of the applicant:

“the fact that the respondent has had a sexual relationship with a leading actor, and indeed, if they so wish, to include the expression of his being a world famous celebrity. I will also allow publication of the fact that the actor is married and a father. It seems to me that this is material to the public debate about the class of person who is seeking these injunctions and the status they are seeking to protect when preventing the publication of private sexual encounters” [23]

He went on to hold that the other “restrictions on open justice” in the order were justified and continued the privacy injunction in modified form.

Comment

The approach taken by the parties and the Judge in this case is similar to that taken in the subsequent case of CTB v News Group Newspapers [2011] EWHC 1232 (QB) and might be thought to be an inevitable consequence of the analysis of the Court of Appeal in JIH v News Group Newspapers [2011] EWCA Civ 42. In that case the Court of Appeal accepted that in privacy cases the court usually faces the choice of naming the claimant and giving very little information about the subject matter of the action, or disclosing the nature of the information and anonymising the claimant. If a claimant is anonymised – and an effective “DFT Order” is made to prevent jigsaw identification – then the argument is that the other party to the relationship (if she or he wishes to do so) should be permitted to “tell their story”.

Three points can be made about this form of “NEJ Order”. First, it has of course no application where the “other party to the relationship” does not wish to have the story published (as was, for example, the position in ETK v News Group Newspapers [2011] EWCA Civ 439).

Secondly, the making of an “NEJ Order” means that some information as to the nature of the relationship (and the identity of the parties) will be published. Following the recent “super injunction spring” even the publication of a small amount of information is likely to encourage internet speculation and identification of an anonymised claimant. This means that the terms of the “proviso” concerning identifying information need to be carefully considered. In some recent cases a detailed schedule of permissible – and impermissible – information has been appended to the order.

Third, the “NEJ” approach leaves out of account the fact that (in contrast to the position in a libel case) the essence of the cause of action is the impact of disclosure on the claimant’s own feelings and dignity. Even if the “anomymisation provisions” in a privacy order are effective, if the “story is told” in a mass circulation newspaper this is something which will, inevitably, have an adverse impact on the claimant. It seems likely this type of considerations will mean that, in the future if a defendant seeks an “NEJ Order” the claimant will seek clear express restrictions on the precise extent of the story that can be told.

The case law in this area continues to develop the law and procedure. None of the issues dealt with in this case were considered in the report of Lord Neuberger’s Committee on Super-Injunctions – “Super-Injunctions, Anonymised Injunctions and Open Justice”. As we pointed out in our post at the time the draft “Model Order” does not contain provisions which have, over the past 6 months, become standard in such orders. These matters will require further consideration by the Rules Committee when the report is implemented.